Supporting the court expert

Montgomery and the “new” test for consenting

Until 11th March 2015, following the approach in Sidaway[1], the question of whether or not there was a breach of duty in the manner in which a person was consented for treatment (and the advice and warnings given) required application of the Bolam[2] test and would be decided primarily on the basis of expert medical evidence. Therefore a doctor was required to follow the practice of a responsible body of medical practitioners in the relevant field, and would only be liable in damages if proved to be outside that practice, although Bolitho[3] might in an appropriate case provide a safety valve if the practice was found to be unreasonable and not standing up to rational analysis. Pearce[4] also illustrated a way round Bolam where the patient had not been informed of a ‘significant risk’ which would affect the judgment of a ‘reasonable’ patient.

For a considerable number of years the GMC Guidelines on consenting[5] have provided doctors with clear guidance as to what information is required to be given to a patient prior to treatment and how information should be provided. The Guidelines do not claim to be exhaustive, but the principles are to be applied in the doctor’s practice (and it would be a bold doctor, one would have thought, to ignore them, if for no other reason than for fear of professional censure).

(i) The doctor should not make assumptions about the information a patient might want or need, or the clinical or other factors a patient might consider significant.[6]

(ii) The doctor must give a patient the information she wants or needs about the potential benefits, risks and burdens and the likelihood of success for each option[7] and should not withhold information unless believing that giving it would cause the patient serious harm, which is something more than the patient becoming upset or deciding to refuse treatment.[8]

(iii) Patients must be told if treatment might result in a serious adverse outcome, that is an outcome resulting in death, permanent or long term physical disability or disfigurement, medium or long-term pain or admission to hospital, or other outcomes with a long-term or permanent effect on a patient’s employment, social or personal life, even if the likelihood is small.[9]

(iv) Information must be given in a balanced way, avoiding bias, explaining the expected benefits as well as the potential burdens and risks.[10]

The GMC also provides guidance as to the nature of the relationship between doctors and patients in Good Medical Practice which requires doctors to –

‘work in partnership with patients. Listen to, and respond to, their concerns and preferences. Give patients the information they want or need in a way they can understand. Respect patients’ right to reach decision with you about their treatment and care.’

That advice is echoed in the process described in the GMC’s Patients and Doctors making Decisions Together:

‘The doctor explains the options to the patient, setting out the potential benefits, risks, burdens and side effects of each option, including the option to have no treatment. The doctor may recommend a particular option which they believe to be best for the patient, but they must not put pressure on the patient to accept their advice. The patient weighs up the potential benefits, risks and burdens of the various options as well as any non-clinical issues that are relevant to them. The patient decides whether to accept any of the options and, if so, which one.’[11]

In practice the application of the law has evolved since Sidaway and this was reflected, for example, in the Court of Appeal judgments in Chester v Afshar.[12] Given the GMC Guidelines which a doctor is required to follow, the surprise must be that it has taken until 2015 for the law itself finally to catch up. In Montgomery v Lanarkshire Health Board [2015] UKSC (and in which the GMC as an intervener was represented) the Supreme Court unanimously overruled the majority decision in the House of Lords’ decision in Sidaway. Bolam is no longer applicable to consenting. The law now is that:

‘An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. The test of materiality is whether in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it.’[13]

In addressing this duty of care:

(i) The assessment of the materiality of risk is not a question of percentages, therefore, but is fact sensitive to the characteristics of the patient in question.

(ii) The process is a dialogue, between patient and doctor, so information must be provided comprehensibly for the particular patient.

(iii) It will be rare that a doctor can justify withholding information on the grounds that the information would be detrimental to the health of the patient.

Most significantly the court will no longer have to find good reasons for rejecting medical expert evidence which condones the particular practice of the doctor as being within the practice of a responsible body of medical practitioners in the relevant field, but, as with most issues of negligence outside medical practice, will decide the issue of negligence on the facts of the case, applying the test set out in Montgomery. Expert medical evidence as to established practice will no longer be determinative of liability. The law will expect that prior to treatment a patient will be made aware of any risks (i) which a reasonable person in the patient’s position, or (ii) which the doctor should be aware that that patient, would be likely to consider significant.